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EXHIBIT (c)(14)
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of
the 31st day of August, 1998 by and between XXXX ELECTRONICS CORP., a Delaware
corporation with its principal office located in St. Louis, Missouri (together
with its successors and permitted assigns, the "Company"), and XXXXX &
PARTNERS, INC., a Delaware corporation with its principal office located in St.
Louis, Missouri ("Xxxxx & Partners").
W I T N E S S E T H:
WHEREAS, the Company has entered into that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated as of August 27, 1998, with
Framatome Connectors International S.A. and Bravo Acquisition Co.
("Purchaser"), pursuant to which (i) Purchaser will commence a tender offer for
all of the issued and outstanding shares of capital stock of the Company and
(ii) Purchaser will merge (the "Merger") with and into the Company, with the
Company being the surviving corporation in the Merger;
WHEREAS, pursuant to the provisions of the Merger Agreement, the
Company has agreed to cause Xxxxx & Partners to enter into this Agreement with
the Company;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and Xxxxx
& Partners agree as follows:
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1. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Confidential Information" shall mean (i) information
about the Company or any of its Subsidiaries or their respective
businesses, products and practices, disclosed to or known or obtained by
Xxxxx & Partners as a direct or indirect consequence of or through Xxxxx
& Partners' relationship with the Company or any of its Subsidiaries,
which information is not generally known in the business in which the
Company or such Subsidiaries are or may be engaged or (ii) any trade
secrets, information, data or other confidential information relating to
the business or affairs of the Company or any affiliate or subsidiary of
the Company. Confidential Information shall not, however, include under
any circumstances any information with respect to the foregoing matters
which is (I) available to the public from a source other than Xxxxx &
Partners, (II) released in writing by the Company to the public, (III)
required to be disclosed by any court process or any government or
agency or department of any government or agency or (IV) the subject of
a written waiver executed by the Company for the benefit of Xxxxx &
Partners.
(c) "Subsidiary" shall mean any entity in which the Company
either (I) controls more than 50% of the voting power of all securities
of such entity or (II) owns more than 50% of the total value of all
equity securities of such entity.
(d) "Term" shall mean the term of this Agreement as described
in Section 13.
2. Non-Compete. (a) Xxxxx & Partners, in acknowledgment and
recognition of the highly competitive nature of the business of the Company and
its affiliates, and in consideration of the benefits under this Agreement and
other good and valuable consideration, for a period of two (2) years from the
date the Merger is consummated (the "Non-Compete Term"), will not, directly or
indirectly, engage in the connector business, whether such engagement is as a
partner or investor (other than as a holder of less than 5% of the outstanding
capital stock of a publicly traded corporation), consultant, advisor, agent,
sales representative or other participant.
(b) During the Non-Compete Term, Xxxxx & Partners will not
directly or indirectly induce any current or former employee of the Company or
any of its
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affiliates to engage in any activity in which Xxxxx & Partners is prohibited
from engaging by paragraph (a) hereof or to terminate his employment
relationship, as applicable, with the Company or any of its affiliates.
(c) Xxxxx & Partners acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
paragraphs (a) or (b) would be inadequate and, in recognition of this fact,
Xxxxx & Partners agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available.
(d) Xxxxx & Partners expressly acknowledges that the scope of the
foregoing covenants is reasonable and necessary in order to protect the
interests of the Company and its affiliates. Notwithstanding the foregoing, if
a final judicial determination is made by a court of competent jurisdiction or
an arbitrator that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against Xxxxx & Partners, the
provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court or arbitrator may determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction or arbitrator finds that
any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained
herein.
(e) Notwithstanding anything to the contrary contained in this
Section 3, Xxxxx & Partners shall be entitled to engage in any business which
derives not more than 15% of its aggregate revenues from its connector
business.
3. Assignability; Binding Nature. This Agreement shall be binding
upon and inure to the benefit of the Company and Xxxxx & Partners and their
respective successors and permitted assigns. As used in this Agreement,
"Company" shall mean the Company and any successor to its business which
assumes and agrees to perform this Agreement, by operation of law or otherwise.
4. Representation. Xxxxx & Partners represents and warrants that it
is authorized to enter into this Agreement and that the performance of its
obligations
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under this Agreement will not violate any material agreement between Xxxxx &
Partners and any other person or entity.
5. Entire Agreement. Except to the extent otherwise provided
herein, this Agreement contains the entire understanding and agreement between
the parties concerning the subject matter hereof and supersedes any prior
agreement.
6. Amendment or Waiver. No provision in this Agreement may be
amended unless such amendment is agreed upon in writing and signed by both
Xxxxx & Partners and an authorized officer of the Company. No waiver by either
party of any breach by the other party of any condition or provision contained
in this Agreement to be performed by such other party shall be deemed a waiver
of a similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by Xxxxx & Partners
or an authorized representative of the Company, as the case may be.
7. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
8. Governing Law/Jurisdiction. This Agreement shall be governed by
and construed and interpreted in accordance with the laws of the State of
Missouri, without reference to principles of conflict of laws.
9. Notices. Any notice given to either party shall be in writing
and shall be deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested, duly
addressed to the other party at the address indicated below or to such changed
address as such party may subsequently give by like notice:
If to the Company or the Board:
Xxxx Electronics Corp.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
ATTENTION: Chief Executive Officer
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If to Xxxxx & Partners:
Xxxxx & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
ATTENTION: Xxxxx X. Xxxxx
10. Non-Disclosure of Confidential Information. During the Term or
at any time thereafter, irrespective of the time, manner or cause of the
expiration of the Term, Xxxxx & Partners will not directly or indirectly
reveal, divulge, disclose or communicate to any person or entity, other than
authorized officers, directors and employees of the Company or its
Subsidiaries, in any manner whatsoever, any Confidential Information without
the prior written consent of the Board.
11. Headings. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
12. Counterparts. This Agreement may be executed in two or more
counterparts.
13. Term of Agreement. This Agreement shall remain in effect until
such time as is necessary to enforce the provisions hereof, including Sections
2 and 10. In addition, the respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to preserve such rights and obligations.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
XXXX ELECTRONICS CORP.
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President
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XXXXX & PARTNERS, INC.
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President
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